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STATE OF MICHIGAN
COURT OF APPEALS


REPUBLIC BANK, Plaintiff/CounterdefendantAppellee, v BRITTON ESTATES, L.L.C., GREGORY MICHAEL FRAUNHOFFER, SR., individually and as Trustee of the GREGORY MICHAEL FRAUNHOFFER SR. TRUST NO. 1, and COUNTRY HERITAGE, L.L.C., Defendants/CounterplaintiffsAppellants, and DEANGELIS LANDSCAPE, INC., d/b/a DEANGELIS CONTRACTING, INC., BOSS ENGINEERING COMPANY, SINACOLA COMPANIES, INC., SINACOLA EQUITY VENTURES, INC., DOAN CONSTRUCTION COMPANY, LINEAR CONSTRUCTION & DEVELOPMENT, CONSTRUCTION MANAGEMENT SPECIALISTS, INC., AL'S ASPHALT PAVING COMPANY, DANIEL CAREY, PIONEER LOGISTICS CORPORATION, d/b/a BETTERWAY MOBILE, MUNICIPAL & INDEPENDENT STORAGE, and B & V CONSTRUCTION, INC., Defendants, and MICHAEL D. KENNEDY, Intervening Plaintiff.

UNPUBLISHED February 23, 2006

No. 258616 Lenawee Circuit Court LC No. 04-001464-CH

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Before: Hoekstra, PJ, and Neff and Owens, JJ. PER CURIAM. Defendants-appellants appeal as of right from the trial court's judgment of foreclosure and deficiency in favor of plaintiff. We affirm. This case arises from a commercial loan agreement for the maximum principal sum of $5,050,000, which was entered into on August 23, 2001, by plaintiff, a bank lender, and appellant Britton Estates, L.L.C. (Britton Estates). The loan was secured by real property and a mobile home park to be constructed thereon in two phases. Appellants, Gregory Michael Fraunhoffer, Sr., and the Gregory Michael Fraunhoffer Trust No. 1, were guarantors of the loan under the original loan agreement. Appellant Country Heritage, L.L.C., became a guarantor pursuant to a written amendment to the loan agreement. In February 2004, plaintiff commenced this action to foreclose on the real property and seek other relief against appellants based on Britton Estates's alleged default with respect to the loan agreement and the other appellants' alleged default with respect to their guarantees. In July 2004, appellants filed a countercomplaint against plaintiff, seeking damages for plaintiff's alleged breach of the loan agreement, and fraudulent and innocent misrepresentations. Appellants also sought specific performance of plaintiff's alleged promises by requiring it to fund completion of the construction project. The trial court granted plaintiff's motion for summary disposition with respect to its claims against appellants and appellants' countercomplaint, and entered a judgment of foreclosure and deficiency in favor of plaintiff. Appellants, relying on MCR 2.613(A), argue that reversal is required because the trial court failed to specify either the particular subrule or subrules of MCR 2.116(C), or the applicable standards, on which it relied to grant summary disposition. We conclude that appellants have not established that refusal to reverse the trial court's decision would be inconsistent with substantial justice. MCR 2.613(A). "Findings of fact and conclusions of law are unnecessary in decisions on motions unless findings are required by a particular rule." MCR 2.517(4). The summary disposition rule, MCR 2.116, does not require specific findings or conclusions of law. Indeed, findings of fact are not permitted when a motion is made under MCR 2.116(C). Nesbitt v American Community Mut Ins Co, 236 Mich App 215, 225; 600 NW2d 427 (1999). Here, the trial court did not make findings of fact. The court adequately explained its decision to grant plaintiff's motion by referring to the materials that it reviewed, and by relying on written loan documents and the statute of frauds to conclude that appellants were precluded from pursuing a claim based on oral agreements. We review a trial court's decision on a motion for summary disposition de novo. Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 369; 666 NW2d 251 (2003). It is well settled that a reviewing court may review a trial court's decision under the applicable subrule of MCR 2.116(C). See Spiek v Dep't of Transportation, 456 Mich 331, 338; 572 NW2d 201 (1998). Even a party's mislabeling of a motion under the wrong subrule will not preclude appellate review under the correct subrule as long as neither party was misled by the mislabeling of the motion. See Mollett v Taylor, 197 Mich App 328, 332; 494 NW2d 832 (1992). -2-


Plaintiff's motion indicated that it was based on MCR 2.116(C)(8) and (10), but it is clear that plaintiff was relying on evidence beyond the pleadings when seeking summary disposition with respect to the parties' contract dispute. Plaintiff submitted documentary evidence and affidavits in support of its position that it did not breach the loan agreement by refusing to grant the loan advance requested in June 2003, that Britton Estates defaulted on the loan agreement, and that the other appellants defaulted on their guaranty agreements. Further, while plaintiff challenged the specificity of the fraud allegations in appellants' countercomplaint, it is clear that plaintiff also relied on the statute of frauds as precluding any claims based on alleged oral promises. Similarly, appellants did not rely solely on the pleadings to oppose plaintiff's motion, but also submitted affidavits in support of their position that the motion should be denied. A motion pursuant to MCR 2.116(C)(10) tests the factual sufficiency of a complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). Where the evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Id. Summary disposition may be granted under MCR 2.116(C)(7) when a claim is barred by the statute of frauds. Unlike a motion under MCR 2.116(C)(10), neither party is required to file supportive materials with respect to a motion under MCR 2.116(C)(7). Id. at 119. But if evidence is submitted to the trial court, it must be considered. Id.; MCR 2.116(G)(5). The allegations in the complaint are accepted as true unless contradicted by the evidence. Id. at 119.1 Appellants assert that MCR 2.116(C)(10) could not apply because discovery was not undertaken. A motion under MCR 2.116(C)(10) can be raised at any time. MCR 2.116(D)(3). "If a party opposes a motion for summary disposition on the ground that discovery is incomplete, the party must at least assert that a dispute does indeed exist and support that allegation by some independent evidence." Bellows v Delaware McDonald's Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994), citing Michigan Nat'l Bank v Metro Institutional Food Service, Inc, 198 Mich App 236, 241; 497 NW2d 1993. Summary disposition may be granted if there is no reasonable chance of uncovering factual support for the opposing party's position from further discovery. Peterson Novelties, Inc v Berkley, 259 Mich App 1, 25; 672 NW2d 351 (2003). Appellants did not show any reasonable chance for uncovering factual support for their position. They offered no evidence to rebut plaintiff's evidence of multiple default events under the loan agreement, including Britton Estates's failure to pay interest after July 2003, or to complete phase I of the project by December 31, 2003. Regardless whether plaintiff approved changes in the development, appellants offered no evidence that plaintiff agreed to modify or waive its right to use the appraised value for phase I under

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